A Path to Public Safety: The Legal Questions around Immigration Detainers

In recent years, there has been a heated debate on the cooperation between the federal government and local jurisdictions on immigration enforcement. Local jurisdictions that limit their cooperation with federal immigration enforcement have come under attack from the Trump administration and some members of Congress. Much of the conflict revolves around federal immigration detainers-requests from the federal government to detain individuals suspected of being in the United States unlawfully. This paper presents a thorough examination of the legal issues related to immigration detainers. It reviews the 10th amendment's "anti-commandeering" constraints on the federal government's ability to compel local jurisdictions to honor immigration detainers. The Constitution's fourth amendment prohibits the government from depriving a person of liberty without probably cause, and a local jurisdiction that holds a person beyond his or her scheduled release from prison may be held liable. Finally, there is a question as to whether immigration detainers are even legal under the Immigration and Nationality Act. Given the legal context of immigration detainers, the paper concludes by noting that states and localities have elected not to honor detainers because federal law makes clear that honoring detainers without a warrant or probable cause is illegal in most situations (Maurice Belanger, Maurice Belanger Associates).